The Moral Arc

A Blog about Law and Social Justice

“The greatness of America lies not in being more enlightened than any other nation, but rather in her ability to repair her faults.”

-- Alexis de Tocqueville (1805-1859)

"Every man is guilty of the good he did not do."

-- Voltaire (1694-1778)

“The arc of the moral universe is long, but it bends towards justice.”

-- Martin Luther King (1929-1968)

"I do not pretend to understand the moral universe; the arc is a long one, my eye reaches but little ways; I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. And from what I see I am sure it bends towards justice."

My first post deals with the historic case Obergefell v. Hodges, which was argued before the U.S. Supreme Court on April 28, 2015. The case as you probably know deals with the constitutionality of a state's refusal to recognize same-sex marriages from other jurisdictions or a state's refusal to license same-sex marriages, or both.

I remember being in the U.S. Air Force as a JAG, when the military had the “Don’t Ask, Don’t Tell” policy, which was intended by the Clinton Administration to benefit homosexual members, but still ended up saying that those in homosexual relationships were not welcome in the military. When I was a defense counsel, I dealt with about a dozen cases where homosexual members were being involuntarily discharged because of their homosexuality. In each case, the service member was highly respected, highly intelligent, and it seemed wrong that a person who was by all accounts a productive member of his or her unit would be forced out merely because of their sexual orientation.

At about that time, the Supreme Court in Bowers v. Hardwick, 478 U.S. 186 (1986) upheld in a 5-4 ruling the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults.

In this case, a police officer issued Michael Hardwick a citation for public intoxication. When Hardwick did not appear in court, the court issued an arrest warrant. A few days later, officers went to Hardwick’s apartment. A roommate allowed the officers in and directed them down the hall to Hardwick's room. The police opened the door and observed Hardwick and a companion engaged in mutual, consensual oral sex.

Both men were placed under arrest for sodomy, which was defined in Georgia law to include both oral sex and anal sex between members of the same or opposite sex. The local district attorney chose not to pursue the charge, but Hardwick sued Michael Bowers, the Attorney General of Georgia, arguing that Georgia's sodomy law was unconstitutional.

I’ve recently re-read this decision and find it fascinating how out-of-date the opinion of the Court is, but how forward thinking and beautiful parts of Justice Blackmun's dissenting opinion are.

Justice Byron White delivered the opinion of the Court, in which he said:

Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do….

Proscriptions against [sodomy] have ancient roots….

Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution….

[I]llegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home.... And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conductwhile leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.

Chief Justice Warren Burger wrote a concurring opinion, where he said, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

Justice Powell also wrote a concurring opinion, which is notable only for pointing out that the anti-sodomy law in question authorized a Court “to imprison a person for up to 20 years for a single private, consensual act of sodomy,” and that in his opinion, a sentence this long “would create a serious Eighth Amendment issue.”

(According to the New York Time's obituary for Justice Powell, in 1990 he told students at New York University Law School that he had taken a second look at [Bowers] and regretted his vote. 'I think I probably made a mistake in that one,' he said").

Justice Blackmun’s dissenting opinion (joined by Justices Brennan, Marshall and Stevens), as stated above, has a certain visionary and timeless beauty to it:

This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare… than [other cases were] about a fundamental right to watch obscene movies [or] about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone."

The statute at issue… denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity…. Like Justice Holmes, I believe that "[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past" ….

Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality." The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many "right" ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds….

In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choosehow to conduct their lives is acceptance of the fact that different individuals will make different choices…. The Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.

The behavior for which Hardwick faces prosecution occurred in his own home, a place to which the Fourth Amendment attaches special significance. The Court's treatment of this aspect of the case is symptomatic of its overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases. Just as the right to privacy is more than the mere aggregation of a number of entitlements to engage in specific behavior, so too, protecting the physical integrity of the home is more than merely a means of protecting specific activities that often take place there….

As Justice Jackson wrote so eloquently…, "we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization…. [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority....

That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine…. A State can no more punish private behavior becauseof religious intolerance than it can punish such behavior because of racial animus….

This case involves no real interference with the rights of others, for the mere knowledge that other individuals do not adhere to one's value system cannot be a legally cognizable interest, let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently.

After retirement, Justice Blackmun has said that he thought his best opinion was this dissent. Interestingly, he also said that his law secretary, Pamela S. Karlan, wrote much of the opinion. See, "The Brains Behind Blackmun," in Legal Affairs. Karlan is a respected professor at Stanford Law School, who according to her bio page is currently on leave serving as a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice. After Justice Souter announced his intent to retire, President Obama let it be known that he would look to advance diversity in replacing Souter. According to a Politico article, "Groups push for first gay Supreme Court Justice," she was touted as a possible choice to replace the outgoing Justice and, depending upon the next president, may be a future choice.

Bowers offended me as being wrongly decided. But it was also relevant to me as a prosecutor and defense counsel, as well as an active duty service person, because the Uniform Code of Military Justice (UCMJ) contained a statute similar to Georgia's law, which was occasionally used to prosecute people for homosexual as well as heterosexual sodomy. (Incidentally, the UCMJ also contained an equally antiquated provision making it a crime to commit adultery).

At the time, the case seemed wildly outdated. But within ten years, the Court was taking a more enlightened view on sexual orientation. In the next major case on the issue, Rower v. Evans, 517 U.S. 620 (1996), the Court found that a Colorado constitutional amendment prohibiting protected status based upon sexual orientation did not satisfy the federal Equal Protection Clause. In 2003, the Court overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003), specifically holding that anti-sodomy laws are unconstitutional. And in the third major sexual orientation case, U.S. v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013), the Court held that the provision of the Defense of Marriage Act (DOMA) that restricted the interpretation of "marriage" and "spouse" to apply only to heterosexual couples was unconstitutional.

Rower, Lawrence and Windsor show that even though the Supreme Court might have a "conservative" bent, it is still capable of changing with the times, at least on these issues.

In my next post, I will talk about oral arguments in Obergefell v. Hodges.

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